ORDERS:
FINAL ORDER
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code
Ann. §61-4-520 (Supp.2003) for an expedited contested case hearing. The Petitioner seeks an
on-premises beer and wine permit and sale and consumption (mini-bottle) license for the
location at 2447 Ashley River Road, Charleston, South Carolina. This matter is presently before
the Court because of a protest by a concerned citizen regarding a business dispute with the prior
owner of the restaurant. The Respondent moved to be excused, since but for the protest they
would have issued the permit and license. This motion was denied. After notice to the parties
and Protestant, a hearing was conducted on November 23, 2004, at the Court in Columbia, South
Carolina. At the hearing, the parties, their counsel and Protestant were present as indicated.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and
having closely passed upon their credibility, I make the following Findings of Fact by a
preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit and mini-bottle
license
for the location known as Penachio’s West, located at 2447 Ashley River Road, Charleston,
South Carolina. This location is a restaurant, and has held a license in the past.
2. The Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all statutory requirements and would have granted the permit but
for the protest as to the business dispute.
3. The applicant is of good moral character. The State Law Enforcement Division’s
criminal background investigation revealed no criminal violations.
6. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the
State of South Carolina, and has maintained her principal residence in the State for at least thirty
days prior to the application.
7.Notice of the application appeared in the Post and Courier, a newspaper of
general
circulation in the area of the proposed location, once a week for three consecutive weeks and
notice was posted at the proposed location for fifteen days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1.The South Carolina Administrative Law Court has jurisdiction over this matter
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003).
2.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
3.Although “proper location” is not statutorily defined, broad discretion is vested in
the trier of fact to determine the fitness or suitability of the proposed business location of an
applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C.
593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption license).
4.It is also the fact finder’s responsibility to judge the demeanor and credibility of
the witnesses and determine the relevance and weight of any testimony offered.
5.In considering the suitability of a location, it is relevant to consider the previous
history of the proposed location and to determine whether the testimony in opposition to a permit
consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168,
198 S.E.2d 801 (1973).
6.Without sufficient evidence of an adverse impact on the community, the application must
not be denied if the statutory criteria are satisfied. The fact that a Protestant objects to the
issuance of a permit is not a sufficient reason alone to deny the application. 48 C.J.S.
Intoxicating Liquors § 119 (1981).
7.S.C. Code Ann. § 61-4-525 (Supp. 2003) provides that a person residing in the
county in which a beer and wine permit is requested to be granted, or a person residing within
five (5) miles of the location, may protest the issuance of the permit if he files a written protest.
8.Permits and licenses issued by the State are not rights or property, but are rather
privileges granted in the exercise of the police power of the State. See Feldman v. South
Carolina Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
9.After considering all the relevant factors, I find that the restaurant’s location is
suitable for the on-premises sale of beer and wine and sale and consumption (minibottle) license.
There is nothing to indicate that the Petitioner would operate her business in an unlawful
manner. Even the Protestant admitted that he had no concerns about the suitability of the
location or the applicant. Any business disputes between the Protestant and the prior owner of
the business are not within the jurisdiction of this court, and should properly be brought in either
Magistrate Court or Circuit Court.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue grant the Petitioner’s
application for an on-premises beer and wine permit and sale and consumption (minibottle)
license.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
January 29, 2005
Columbia, South Carolina |
